Estate of Charles N. Aronson, Deceased, Barney P. Aronson, Executor - Page 37

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          that under the terms of the trust the income referred to must be            
          currently (at least annually) distributable to the spouse or that           
          she must have such command over the income that it is virtually             
          hers.  Sec. 20.2056(b)-5(f)(8), Estate Tax Regs.                            
               A determination of the nature of the interest that passes to           
          the surviving spouse is made pursuant to the law of the                     
          jurisdiction under which the interest passes.  Estate of                    
          Nicholson v. Commissioner, supra at 672-673.  In the instant                
          case, that is the law of New York.  Although we will look to                
          local law to determine the nature of the interests provided under           
          a trust document, we are not bound to give effect to a local                
          court order that modifies that document after the Commissioner              
          has acquired rights to tax revenues under its terms.  E.g.,                 
          id. at 673.  The law is clear that we are not bound by the action           
          of a State trial court, such as the Surrogate’s Court, that has             
          not been affirmed by the State’s highest court.  Commissioner v.            
          Estate of Bosch, 387 U.S. 456 (1967).                                       
               “[I]n construing a will, the intention of the testator must            
          be our ‘absolute guide’”.  In re Bieley, 695 N.E.2d 1119, 1122              
          (N.Y. 1998) (citations omitted); see In re Selner, 26 N.Y.S.2d              
          783 (App. Div.), affd. 39 N.E.2d 287 (N.Y. 1941).  “The prime               
          consideration * * * is the intention of the testator as expressed           
          in the will.  All rules of interpretation are subordinated to the           
          requirement that the actual purpose of the testator be sought and           






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